Waving the Flag  | American Journalism Review
 AJR  Columns :    FIRST AMENDMENT WATCH    
From AJR,   November 2001

Waving the Flag   

The press must maintain its watchdog role in wartime.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     


Seventy years ago, in the landmark case Near vs. Minnesota, the U.S. Supreme Court ruled that virtually every attempt by the government to censor the press would be unconstitutional.

However, the majority opinion by Chief Justice Charles Evans Hughes cautioned that immunity from "previous restraint is not absolutely unlimited." Hughes noted, by way of example, that in time of war, the publication of details of troop movements could be restricted.

On September 20, President Bush proclaimed to the nation and the world that America had been attacked in "an act of war," and that the people of the United States must prepare for "a lengthy campaign unlike any other we have ever seen." He announced the creation of a new Cabinet-level post to coordinate "essential" measures to strengthen national security and intelligence operations.

But even before Bush's speech, Congress had begun to consider a variety of legislative initiatives proposed by Attorney General John Ashcroft, supposedly designed to uncover and stop potential terrorists. These include granting law enforcement greater wiretapping authority, as well as providing the government with broad access to private e-mail and other online communications.

On the same day the president delivered his speech, a broad-based coalition of 150 organizations ranging from the ACLU to the Eagle Forum issued a declaration "In Defense of Freedom," warning of the need to consider these and similar proposals "calmly and deliberately," lest core liberties and freedoms be eroded in the name of preventing terrorism. The declaration reminded us that government must remain accountable even in times of war, and that security and liberty have been reconciled in the past, and can be again.

Absent from the declaration, however, was any explicit reference to the need to protect freedom of the press. Yet even during the first days following the attacks, sporadic incidents involving the confiscation of journalists' film or credentials occurred in New York and Washington, D.C. It is likely that in the coming weeks, greater constraints will follow, especially on media coverage of military operations.

Vice President Dick Cheney was defense secretary when, in the wake of the Persian Gulf War, the Pentagon adopted a set of guidelines for combat coverage (see "Collective Amnesia," October 2000). The nine principles hammered out purported to guarantee rights of access by the press to military operations. But they also included an open-ended requirement that journalists--who must be credentialed by the military--abide by an unspecified "set of military security ground rules."

The media representatives refused to agree to a 10th principle: prior "security review" by the military to ensure that dispatches conform to those ground rules. They argued that journalists had demonstrated in past conflicts that they could be trusted to "act responsibly." The military insisted that it needed prior review to avoid inadvertent disclosures that could endanger troop safety. The debate ended in a stalemate, with each side issuing a statement on the topic.

But as the nation embarks on a war of indefinite scope and duration, inevitably the debate will begin again. Even those who support press freedom in the abstract will face challenges when it comes to convincing the government – not to mention the public--that the need for independent watchdogs is more compelling than ever.

The news media enthusiastically participated in the outpouring of patriotic fervor in the days immediately following the terrorist attacks. It seemed like the right thing to do. But as heartening as the demonstrations of solidarity may have been to many Americans, they represent a trap for journalists who might be tempted to support the government's initiatives without first subjecting them to the kind of independent scrutiny that is essential to any democracy.

Harold Evans, a former editor of the London Sunday Times and author of "The American Century," observed in a speech at the London School of Economics in February 2000, "The press in every country feels a strain when issues of apparent patriotism arise. National unity is a prize. But it is precisely at times of peril that questions should be asked, voices raised."

Will the American press have the stomach to ask those questions and to raise its voice? Will it guard against erosions of its rights in the name of national security? Will it inform readers and viewers when restrictions prevent the kind of unfettered reporting that the public expects?

To fail to do so would constitute as profound a rejection of the guarantees of the First Amendment as the most repressive form of censorship the government could dream up.

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